WASHINGTON – U.S. Senator Chris Coons (D-Del.), a member of the Senate Judiciary Committee, today announced his decision to oppose in Committee the nomination of Judge Neil Gorsuch for the Supreme Court.
Full video and audio available here.
Senator Coons’ remarks, as delivered, are below:
There have been just 112 Supreme Court Justices in our nation's entire history. These jurists have decided cases that have shaped the interpretation and application of our Constitution and influenced the lives of generations of Americans. Some of these cases are celebrated turning points in our Nation's long quest to form a more perfect Union. Cases like Brown v. Board of Education that ended racial segregation in schools. Cases like Gideon v. Wainwright, that ensured all, even criminal defendants and the penniless, are entitled to council. Cases like Obergefell that decided it is the law of the land that couples can affirm their commitment in marriage, whether they are of opposite sex, or same sex. There are other signature cases like Dred Scott and Korematsu that have left stains on our history that have outlived the service of any one judge.
Since Antonin Scalia passed away, in February 2016, I have reflected on the importance of our Supreme Court and the Senate's responsibility to confirm the nominee of the President. Just over 25 years ago, I was myself a law student intern on the Senate Judiciary Committee nomination unit for then Chairman Joe Biden. At that time, I had heard from long serving Senators a record of grievances and wrongs committed from one party against another in a variety of confirmations and hearings in the Bush and Reagan administrations and before. And I'm struck that half of the committee serving here today hasn't previously participated in any Supreme Court confirmation on this committee. When Justice Scalia died, I called on President Obama to nominate a consensus candidate to the Court that would help us to bridge our deep partisan divides and enhance the legitimacy of the Court on which our rule of law so profoundly depends, and President Obama did just that.
He nominated Chief Judge Merrick Garland, by any accounts, one of the most centrist and confirmable nominees ever nominated to the Supreme Court. But instead of healing the wounds left by partisan battles long since passed, new ones formed. Republicans held the seat open for over 300 days without regard for the damage of doing so to the Court or to this body, and I appreciate my colleague, Senator Franken's defense of the speech once given by my former boss in this committee, Senator Biden. Let me be clear, this action by my colleagues was unacceptable and has scarred this process and this body. As Senator Cornyn previously remarked, there has never been a partisan filibuster of a Supreme Court nominee in history. While technically correct, I question what a seven month refusal to hold a hearing or vote is, if not the longest partisan filibuster on this committee ever. I haven't forgotten the injustice done to Judge Garland and neither have any of my colleagues, but we simply cannot move this committee and this body forward if we endlessly obsess over past grievances and revenge.
So, unlike the majority leader who announced before that if there was any nominee from President Obama that he wouldn’t get a hearing, I pledged to treat President Trump's nominee fairly and to engage actively in this process, and I did so. Throughout this process, I have kept an open mind. After reviewing Judge Gorsuch's record, after meeting with him twice, after participating in four days of very well-run Senate Judiciary confirmation hearings submitting questions and getting feedback from literally thousands of Delawareans, I have decided that I will not support Judge Gorsuch's nomination in the Judiciary Committee today. I appreciate that Judge Gorsuch is an intelligent jurist and an engaging writer. I admire his commitment to being a good father to his daughters, a good husband to his wife, and a good mentor to his clerks, and I even agree with many of his decisions, but I believe that my role in evaluating his nomination is more than reviewing his resume. It is more than recognizing that he his smart and charming and I have to do more than think about a large number of consensus decisions, because the law is shaped by circuit courts, and even more so in the Supreme Court, by a handful of very significant signature decisions.
Thus, I must follow my predecessor's practice in considering Judge Gorsuch's philosophy and its impact on the Constitutional rights of others, even those very different from himself and with values different from his own. That's why my questions at Judge Gorsuch's hearings focused on his view of American's right to privacy and liberty to make their most important personal life decisions. At the hearings, I focused in on a 10th Circuit case written by Judge Gorsuch, Hobby Lobby, which for the first time allowed for-profit companies to refuse to provide thousands of employees access to family planning based on the for-profit corporation’s religious beliefs. I laid out in great detail in the confirmation hearing why I viewed that as not just a strange reading or an over-reach, but as one that is widely outside the context of previous law, but I think I can summarize this best by quoting Chief Judge Briscoe's dissent in that same case. It struck me. She said that Judge Gorsuch's view was nothing short of a radical revision of First Amendment law, as well as the law of corporations, and that such views were wholly unsupported by the language of the Free Exercise Clause or the Supreme Court's Free Exercise Jurisprudence.
In his concurrence in Hobby Lobby, Judge Gorsuch advanced a broad theory of the Religious Theory Restoration Act under which an employer could avoid complying with any neutral, universally applicable law in order to avoid complicity in the wrong-doing of others. I pressed Judge Gorsuch to give me a limiting principle to this new complicity theory, but was left in the end with more questions than answers. I also asked Judge Gorsuch about his understanding of core constitutional provisions that protect reproductive rights, death with dignity, and marriage equality. In his 2006 book, The Future of Assisted Suicide and Euthanasia, Judge Gorsuch was critical of an individual's right make their own end-of-life decisions and asserted, and I quote, “…that all human beings are intrinsically valuable and the intentional taking of life by private persons is always wrong.” His book and other comments suggest a very narrow interpretation of a key precedent, Planned Parenthood of Southeastern Pennsylvania v. Casey, an absolutely central case to addressing personal liberty and reproductive rights as protected under the Fourteenth Amendment's Due Process clause. Casey is a critical precedent that the Supreme Court has continually relied on for 25 years to protect the freedom of many, including most recently, the freedom of same-sex couples to have intimate relationships and to support marriage equality as the law of the land.
On each of these important issues and more, Judge Gorsuch avoided responding concisely and thoroughly to questions. In fact, as detailed by Senator Feinstein, he avoided responding to questions that many other nominees, nominated by both Republicans and Democrats, have not just answered but answered squarely. He told me that the Casey decision remains an open question in many ways. He would not agree with me that the right to privacy today extends to protecting women's right to have autonomy over their reproductive choices and to protecting the privacy of intimate relations between consenting adults, whether same-sex or the opposite sex. This and many more left me concerned Judge Gorsuch harbors a restrictive view of the right to privacy and personal liberty rooted in the Due Process Clause of the Fourteenth Amendment. But let me be clear, I don't think these and other issues raised by many of my colleagues are just narrowly partisan issues.
I think it is unfortunate if we lead the public to view members of the Supreme Court simply as red or blue, deciding cases along partisan lines, because there are many cases that are decided not along partisan lines but along lines that are narrowly legal. In fact, I think in 60 percent of the cases decided by the Court, they are unanimous. Indeed, several of the justices nominated by Republican presidents have appreciated exactly this point, the important role of Fourteenth Amendment due process in securing individual liberties and have taken a far more restrained view of their judicial role than Judge Gorsuch's record suggests he would adopt. Judge Gorsuch's record shows a tendency to searchingly explore broader issues than is necessary to solve the case before him, a willingness to revisit long-settled precedent, and to promote actively changes to the law. As others have discussed, he has insisted that the Chevron Doctrine should be revisited. This doctrine is a long-standing precedent that ensures Judicial Deference to agency experts responsible for health and safety and environmental consumer protection regulations. Even more troubling for me, he suggested restricting access to federal courts for actions brought under section 1983, a critical tool for civil rights enforcement. It is based on these and many other concerns that I have detailed in my questioning, my questions for the record, and in further statements I've made, that I will ultimately vote against Judge Gorsuch's nomination today.
Still, I share the view of many of my colleagues that Judge Gorsuch is a talented and experienced jurist. I understand why all of my Republican colleagues will support him and why some of my Democrat colleagues will support him today as well. I cast my vote well aware that he will receive the required votes on this committee to advance to the full Senate. We are at a historic moment in the history of the United States Senate. Thanks to actions, decisions, even mistakes made by both Democrats and Republicans over recent years, over many years, we have eroded the process for reaching agreement and have dishonored our long traditions of acting above partisanship, especially when it comes to confirmations of judges and now justices. I said last week, it would be tragic if Judge Gorsuch's confirmation process leads the Senate Republicans to join the majority leader in abolishing the 60 vote threshold for cloture on nomination of a Supreme Court Justice. Let's be frank, the majority leader has assured us he will abolish the 60 vote threshold for Judge Gorsuch if the Democrats don't support him on the Senate floor. I don't agree with that approach, but like it or not, as many of you have asserted today, that is the reality.
On Thursday, the full Senate will participate in what’s called a ‘cloture vote.’ It’s one of the Senate’s many long traditions, and though many Americans might not know exactly what it means, it means that we are done debating, that we are ready for the final vote. And almost always a combination of both Democrats and Republicans are required for us to get to cloture. So, on Thursday, we’ll be voting to decide whether we’re ready to finish debating the confirmation of Judge Gorsuch. I am not ready to end debate on this issue, so I will be voting against cloture unless we are able, as a body, to finally sit down and find a way to avoid ‘the nuclear option’ and ensure that the process to fill the next vacancy on the Court is not a narrowly partisan process, but rather an opportunity for both parties to weigh in and ensure we place a judge on the Court who can secure support from members of both parties.
The reality we are in requires us over the next several days to consider what both Democrats and Republicans are doing to this body and to consider what both Republicans and Democrats have done to erode the trust that has long lasted between us. We must consider whether we can stop the undeniable momentum towards abolishing the traditions that make this Senate unique and important. Democrats, including me, are still furious at the way Judge Merrick Garland was treated last year, but the traditions and principles that have defined this Senate are crumbling and we are poised to hasten that destruction this week. So, for my part, I hope and pray that we can yet find a way together to find a solution.
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